PEOPLE v. LYNCH, 410 Mich. 343 (1981)

301 N.W.2d 796

PEOPLE v LYNCH

Docket No. 63061.Supreme Court of Michigan.Argued April 15, 1980 (Calendar No. 4).
Decided February 23, 1981.

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Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney Edward Reilly Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.

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William R. Stackpoole for defendant.

LEVIN, J.

Lynch was charged with possession of a gas-ejecting device.[1] He was convicted on his plea of guilty to the reduced charge of attempting to carry a gas-ejecting device.

The Court of Appeals, applying the vagueness test outlined i People v Howell,[2] accepted Lynch’s argument that the statute was unconstitutionally vague and overbroad and vacated his conviction, saying:

“Thus, by its failure to sufficiently distinguish between legal (such as a can of hairspray or deodorant) and illegal gas-ejecting devices, the statute does not provide sufficient notice as to what conduct is prohibited. Further, * * * it permits too broad a judgment as to what behavior falls within the ambit of the law’s coverage.”[3]

It said that the statute was not susceptible to a limiting construction and could be saved only by the legislative addition of a specific intent requirement.

We reverse the Court of Appeals. The statute clearly reaches gas-ejecting weapons such as Lynch attempted to carry, and thus the statute is not unconstitutionally vague as applied to him.[4]

I
The prosecutor contends that Lynch is precluded from challenging the statute on vagueness grounds

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because he failed to raise the issue in Recorder’s Court, and that Lynch does not have standing to assert the overbreadth of the statute in reaching innocent gas-ejecting devices because he was not carrying such an innocent device.

A
While generally a question may not be raised for the first time on appeal, this rule is not inflexible.[5] The question of the statute’s vagueness was the primary issue addressed and briefed both in the Court of Appeals and in this Court. The record provides an adequate basis for decision.[6] Conflicting decisions in the Court of Appeals on this question have rendered the statute of uncertain validity.[7] Law-abiding citizens may wish to carry gas-ejecting devices for reasons of personal security, yet cannot know whether they may do so under the present state of the law.[8]

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B
As noted in People v Howell,[9] “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand”. Due regard for principles of standing, and recognition that declaring a statute unconstitutional is “`the gravest and most delicate duty that this Court is called on to perform'”,[10] mandate that, outside the context of the First Amendment,

“one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”[11]

Lynch thus will not be heard to assert that the statute is overbroad in reaching innocent gas-ejecting devices where the facts on which he was convicted show that he was carrying a gas-ejecting weapon and, as discussed below, the statute clearly reaches such conduct.[12]

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II
While the statute by its terms appears to reach gas-ejecting weapons, a thorough discussion of the meaning of the statute is appropriate in light of the Court of Appeals holding that the statute is not susceptible to a limiting construction and the conflict among different Court of Appeals panels regarding the statute’s constitutionality.

The statute in effect at the time Lynch was charged provided:[13]

“Any person who shall manufacture, sell, offer for sale or possess any machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, or any muffler, silencer or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than $2,500.00.” MCL 750.224; MSA 28.421.

The italicized language was added by a 1929 amendment. 1929 PA 206.

A literal construction of the gas-ejecting-device language, independent of the statutory context, would cover any device capable of emitting a gas

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that would temporarily harm a person. It has long been the rule in Michigan, however, that a literal construction ought not to be given where it is contrary to the apparent intent of the Legislature.[14]

“The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act.”[15]

Applying the rule of noscitur a sociis, that “[t]he meaning of a word is or may be known from the accompanying words”,[16]
we note that the language at issue is included in a statute dealing with such items as machine guns, bombs, blackjacks, metallic knuckles, billies and bludgeons. The objects in this class are not only exclusively weapons, but are weapons used almost exclusively in perpetration of crime. Finding the language at issue in a statute dealing with such a narrow class of weapons is a strong indication that the Legislature intended to reach only gas-ejecting weapons.

This impression is bolstered by examining related statutes.[17] When the Legislature amended the statute to include the language dealing with gas-ejecting devices, it was faced with the choice of

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including it in 1927 PA 372, § 3, which made the manufacture, sale or possession of the listed objects a strict-liability offense, or in § 4, which required an intent to use the objects there listed “unlawfully against the person of another”. MCL 750.226; MSA 28.423. The Legislature chose to include the language in the section making possession a strict-liability offense. Its choice indicates that it thought of gas-ejecting devices not only as weapons, but as weapons of such danger as to merit their prohibition regardless of the intent of the possessor.

Further, the title to the 1929 statute adding the gas-ejecting-device language indicates that the Legislature was concerned with weapons:[18]

“AN ACT to regulate and license the selling, purchasing, possessing and carrying of certain firearms; to prohibit the buying, selling or carrying of certain firearms without a license therefor; to prohibit the possession, manufacture or sale of certain weapons, including gas ejecting or emitting weapons, and attachments, except by certain persons licensed to manufacture, sell or possess any gas ejecting or emitting weapon, cartridge or device * * *.”[19] (Emphasis supplied.)

Contemporaneous construction of the statute is also of assistance. A 1931 decision, People v Brown,[20] considered a constitutional challenge to the statute. While that challenge was based on the

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right to bear arms and was asserted by a defendant convicted of carrying a blackjack, this Court found it necessary to assess the nature of the items which the Legislature intended to prohibit to decide whether the provision was within the police power of the state. That characterization of the intended subject matter of the statute is of precedential significance here:

“The list of weapons in [1929 Compiled Laws] § 16751 * * * is significant and demonstrates a definite intention of the legislature to protect society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the `public enemy’, the `gangster’. It describes some of the particular weapons with which he wars on the State and reddens his murderous trail.”[21]

It was thus decided in 1931 that the statute dealt with weapons — weapons of such danger and malevolent associations as to merit total eradication from society, with narrow, licensed exceptions.[22] We see no reason to depart from that decision today.

Lynch was carrying in his pocket “some spray stuff like the mailman would carry”[23] that would

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“make people cough”.[24] These facts, adduced by the trial judge during Lynch’s plea-taking proceeding, are such as would allow a trier of fact to reasonably draw the inference that Lynch was attempting to carry a gas-ejecting weapon. There was therefore an adequate factual basis for accepting his guilty plea.[25]

An indication that such small, hand-held gas-ejecting weapons are within the intended prohibition of the statute is provided by an opinion issued by the Attorney General in 1932.[26] That opinion states that a “gas pen” could be licensed only to equip certain premises or vehicles and not to be carried on one’s person as a concealed weapon. The Attorney General’s opinion that gas-pen weapons were prohibited by the statute coincides with our analysis of the intended reach of the statute.

Our construction of the statute disposes of the argument, relied on by the Court of Appeals, that the statute reaches non-weapon devices such as hairspray or deodorant.

The order of the Court of Appeals is reversed and Lynch’s conviction is reinstated.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred with LEVIN, J.

LEVIN, J. (concurring).

As set forth in the opinion of the Court, the statute as enacted provided sufficiently clear notice that gas-ejecting weapons such as Lynch attempted to carry are prohibited. A separate question would be presented, however, if circumstances occurring since the statute’s enactment

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have added a gloss to the literal meaning of the statute’s terms so that a reasonable citizen might doubt that gas-ejecting weapons of the kind Lynch attempted to carry were in fact within the compass of the statute’s prohibition.

I write separately to suggest that had the record been developed with evidence establishing such circumstances, which appear to be present in this case, there would be a substantial question whether Lynch had fair notice of the statute’s prohibition.

The statute focuses on weapons in the arsenal of the professional criminal, weapons used primarily to commit crimes. While gas-ejecting weapons may have been of this character in 1929 when the pertinent provision was enacted, it is not at all clear that they are of this character today. It may be that they are currently as likely to be found in a woman’s purse or a mailman’s pouch as in the hands of a criminal bent on mayhem.

This change in the character of a device cannot, of course, create an exception to a valid statute. Where, however, the device takes on a character unlike that of the devices prohibited so that a citizen might doubt that his device is of the kind the statute intended to prohibit, and where that doubt is reinforced, or indeed caused, by lack of prosecution in the face of the open and common sale and possession of the device, the doubt a reasonable citizen might feel as to whether his device is actually one which the statute prohibits may be such that the citizen is deprived of the clear warning that due process requires. A criminal statute must give fair notice to an ordinary citizen that his contemplated conduct is forbidden,[1]

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for “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes”.[2]

“A penal enactment which is linguistically clear, but has been notoriously ignored by both its administrators and the community for an unduly extended period, imparts no more fair notice of its proscriptions than a statute which is phrased in vague terms. Though the language of a desuetudenal act may be clear, `the hardened gloss life has written upon it’ will seem to the individual a `tougher and truer law than the dead words of the written text.’ In this situation, a rational choice between statute and the `living law’ of both community and state becomes insuperably difficult and dangerous for the spectator.”[3]

I have not been able to discover any record of a prosecution, before Lynch, for the sale or possession of a gas-ejecting device since the provision was enacted over 50 years ago.[4]

I do not suggest that prosecutorial non-use, changed circumstances or pervasive public disobedience may operate to repeal or modify a valid enactment. Repeal or modification is the province of the Legislature. If circumstances and public opinion have changed so as to make it now appropriate that citizens be allowed to carry gas-ejecting weapons for self-defense, it is for the Legislature to so declare, as it recently has in limited fashion.[5] The question suggested here is not whether nonenforcement can cause a statute to lapse into desuetude

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and thereby become constitutionally unenforceable, but rather whether a combination of the circumstances described can operate to deprive a person of the requisite clarity of notice that his conduct is forbidden.

The statute appears to be drawn to reach a narrow class of particularly dangerous and crime-oriented weapons. The device Lynch carried might not appear, in the minds of today’s populace, to be part of that narrow class. The common public sale of these devices without response from law enforcement officials would naturally add to the doubt that these devices are such as the statute prohibits.

This situation is similar to that presented to the United States Supreme Court in Poe v Ullman.[6] In that case, the plaintiffs sought a declaratory judgment of the unconstitutionality of two Connecticut statutes which made it illegal to use contraceptives or to be an accessory to such use. A majority of the Court concluded that the question was not ripe for decision, with three Justices joining an opinion by Justice Frankfurter basing that conclusion on the almost complete lack of prosecutions during the statutes’ 75-year existence despite the open sale of contraceptives throughout the state. Justice Frankfurter stated:

“We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage — the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anticontraceptive

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laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. `Deeply embedded traditional ways of carrying out state policy * * *’ — or not carrying it out — `are often tougher and truer law than the dead words of the written text.'”[7]

As the circumstances in Poe went beyond mere prosecutorial paralysis to suggest a truer law than the dead letter of the statute, so the circumstances which appear to be present here might have added a gloss to the words of the statute, giving them a truer meaning than literalism would convey, and creating doubt in the minds of ordinary persons sufficient to obfuscate an otherwise fair warning.

Moreover, the apparent increased acceptance and use of gas-ejecting devices by law-abiding citizens precludes reliance upon the nature of the offense itself to provide notice of the probable illegality of the conduct. This would distinguis United States v Elliott,[8] where the court found that the 50-year non-use of a statute was not a defense to prosecution under the statute for conspiring to destroy a bridge in Zambia:

“However, [the] statute does not penalize conduct which, through a long period of non-enforcement, has acquired the status of customary usage, nor has opprobrium for the act been suddenly revived. Conspiring to destroy a bridge is not, and never has been, permitted by community mores.”[9]

Here, there appears to have been a shift in “community mores”: the tool of the “gangster” may well have become a weapon “usually relied

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upon by good citizens for defense”.[10] The shift has apparently been encouraged or at least reinforced by a uniform lack of prosecution in the face of open and widespread availability. A combination of these factors, if proven, could have deprived Lynch of the requisite clarity of notice that his conduct was prohibited. The failure to develop the record with such evidence, however, precludes us from granting relief on this basis.

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